Environmental Law & Policy

Eelgrass legal protection

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Legal protection for eelgrass

Eelgrass (Zostera marina) provides a variety of essential ecosystem services in coastal areas, including habitat for shellfish and finfish, food chain production, and sediment stabilization.  In recognition of the services provided by eelgrass beds, there are a number of federal and state environmental laws, programs, and policies for their protection and restoration.  In addition, multiple agencies, federal and state, along with institutions from coastal communities as well as private groups, engage directly in the restoration of eelgrass beds.

In addition to the legal measures specifically intended to protect eelgrass that are described in this article, sustaining the health of eelgrasses requires a holistic approach that includes restoring lost eelgrass beds as well as related coastal habitats such as salt marshes and shellfish beds, reducing physical impacts on existing eelgrass beds, improving water quality, and developing community ties to eelgrasses and other coastal ecological communities.  In addition, legislation not directly focused on eelgrass, but instead aimed at water quality improvement, may be of considerable benefit to eelgrass.

Legislation focused on prevention and protection

Although the multiple federal and state agencies concerned with eelgrass may have similar policies, regulations and goals, their authorities are based in different statutes.  The recognition of the importance of eelgrass ecosystem services is explicitly mentioned in statutes such as the Clean Water Act (CWA) {CWA § 101 (a) (2) (b)}, the Coastal Zone Management Act (CZMA) {CZMA § 303 (2) (A) (C)}, the Water Resource Development Act (WRDA) {WRDA § 204 (c)}, and the Wetlands Protection Act (WPA) {M.G.L. c131, 40} as a significant reason for the protection and restoration of eelgrass beds.

Although most of these statutes are federal laws, the Massachusetts Department of Environmental Protection (DEP), which has its authority under the WPA, ensures that its regulations are consistent with the CZMA.  Although Massachusetts legislation is the state exemplar for this article, other coastal states may have similar statutes.

The US Army Corps of Engineers (USACE) and the Massachusetts Department of Environmental Protection (DEP), for example, have similar policies for the restoration of eelgrass beds. These policies include:

(a)    No net loss, with a long term goal of increasing eelgrass beds.

(b)   An interagency approach and partnership with local communities and private sectors.

(c)    Information relied on for restoration of eelgrass should be the best available scientific knowledge of the ecosystem, which is an ecological understanding of the ecosystem.

(d)   Regulatory programs should be effective and administered in such a manner to avoid impact on private property.

(e)    Restoration and protection of existing eelgrass beds are vital elements to reducing the overall decline in eelgrass beds.

(f)    Protect wetland areas including salt marshes, shellfish beds, dunes, beaches, barrier beaches, salt ponds, eelgrass beds, and freshwater wetlands for their role as natural habitats.

(g)   Promote the restoration of degraded or former wetland resources in coastal areas and ensure that activities in coastal areas do not further wetland degradation but instead take advantage of opportunities to engage in wetland restoration.

 

The National Environmental Policy Act (NEPA) {42 U.S.C. 4332 (2) (C)} and the Massachusetts Environmental Policy Act (MEPA) {M.G.L. c.30, ss. 61-61H} seek to protect eelgrass beds from human activities. This requires federal agencies, in the case of NEPA, and state agencies, in the case of MEPA, to exploit all practicable means and measures to minimize impact on the environment by considering alternatives to proposed projects (Nagle & Ruhl, 2006).

Legislation focused on mitigation

However, if an alternative cannot be considered, then mitigation measures will be planned, as was the case of eelgrass restoration program in Boston Harbor, in the hub line project. The hub-line project was the construction of a 29 mile-long natural gas pipe line in Massachusetts Bay. Between 2004 and 2007, the Massachusetts Division of Marine Fisheries (DMF) re-introduced eelgrass beds in Boston Harbor as mitigation measures for the adverse impact of the project.

Most agencies in Massachusetts including the US Army Corps of Engineers (USACE), Massachusetts Division of Marine Fisheries (DMF), Massachusetts Office of Coastal Zone Management (CZM) and the Department of Environmental Protection (DEP) consider mitigation measures as a last resort. If a project will have a negative impact on an eelgrass bed, according to the regulations from the DEP and USACE, mitigation measures are considered on a ratio larger than 1:1, and in some case up to 5:1. This ratio allows for the temporal loss of eelgrass beds services during the period of restoration. This will provide for the service lost due to the damage of eelgrass beds, and compensate for the time during the loss of services as well.

The USACE and the DEP consider two types of mitigation options. These include the “in-kind” and the “out-of-kind” mitigation measures. The “in-kind” mitigation option requires the creation of eelgrass beds to replace the ones lost due to a proposed project, and the “out-of-kind” mitigation measures encourages the protections of existing or potential eelgrass beds. Brooks, Jones and Virginia suggest that mitigation should replace the ecological benefit lost due to a permitted development and should reduce the impact of the development as well. Restoration has become a significant part of the enforcement of wetlands policy. In its decision on restoration, the US Courts of Appeals (5th cir. 1976) U.S v. Sexton Cover Estates 526 F2d 1293, 1301 described three criteria for restoration which are that:

It should provide maximum environmental enhancement. It should be in accordance with the law, and it should account for the loss of ecosystems and have a likelihood of success.

The restoration of an eelgrass bed back to its natural state cannot be guaranteed. This fact is demonstrated by the poor attempt to restore eelgrass beds and their continual decline in New England. Accordingly, the decision by the courts to recognize that restoration needs to be administered in an ecological framework, through understanding the functioning of the eelgrass habitat itself as well as neighboring coastal systems such as salt marshes and shellfish beds , should, if properly executed, improve the chance of a successful program.  The court’s decision also established the requirement for a monitoring and evaluating process for restoration programs, which is consider as an important criterion for restoration of an eelgrass bed or any restoration program.

References

  • Brook, R. O; Jones, R. and Virginia R. A; (2002) Law and Ecology, the rise of the
  • Clean Water Act Amendments of (1972) P.L. 92-500, 86 Stat. 816, et seq, codified as amended at 33 U.S.C., § 1251-1387
  • Coastal Zone Management Act (1970) P. L 92-583, 86 Stat. 1280, codified at 16 U.S.C. § 1451-1464
  • Diodati, P; Evans, N. T. and Leschen, A.; (2009) Policies, Procedures and Guidelines,
  • Zostera marina, Restoration and Monitoring Technical Guidelines.
  • Leschen et al. (2009) Eelgrass restoration used as construction impact mitigation in
  • Boston harbor, Massachusetts (Technical Report No. TR-37). Commonwealth of Massachusetts: Massachusetts Division of Marine Fisheries.
  • Massachusetts Environmental Policy Act (1977) M.G.L. c.30 § 61-62H
  • Nagle, J.C. and Ruhl, J.B. (2006) The Law of Biodiversity and Ecosystem Management. 2nd Edition, Foundation Pres. USA
  • National Environmental Policy Act (1970), P.L. 91-190, codified as amended at 42 U.S.C., § 4321-4347.
  • Neckles et al. (2009). Status, trends, and conservation of eelgrass in Atlantic and the Northeastern united states. Report of a workshop. Portland, Maine: University of New Hampshire, Durham NH.
  • Short F.T., Short C.A., & Burdick-Whitney, C.L. (2002) A manual for community-based eelgrass restoration. Report to the NOAA Restoration Center. Jackson Estuarine Laboratory, University of New Hampshire, Durham, NH.
  • USACE; (1999) Digest of Water Resources Policies and Authorities. EP 1165-2-1 July, 1999
  • Wetland Protection Act (1996) M.G.L. c. 131, §40
  • Wetlands Resource Development Act (1996). P.L. 99-662
  • Wright, N; (2002) Eelgrass conservation for the B.C coast. B.C Coastal Eelgrass Stewardship Project.

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 Note: This article is part of a series of articles by the author known as A Sustaining Eelgrass (Zostera marina) Reader

 

 

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Citation

Frankic, A. (2014). Eelgrass legal protection. Retrieved from http://www.eoearth.org/view/article/51cbefe87896bb431f69f6f3

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